Cole v. California

Full title: ACIE COLE, JR., Petitioner, v. PEOPLE FOR THE STATE OF CALIFORNIA; FELIPE…

Court: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Date published: Apr 6, 2020

NO. CV 20-1199-MWF (AGR) (C.D. Cal. Apr. 6, 2020)

Opinion

NO. CV 20-1199-MWF (AGR)

04-06-2020

ACIE COLE, JR., Petitioner, v. PEOPLE FOR THE STATE OF CALIFORNIA; FELIPE MARTINEZ, Warden, Respondent.

MICHAEL W. FITZGERALD UNITED STATES DISTRICT JUDGE

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus ("Petition"), the other records on file herein, the Report and Recommendation of the United States Magistrate Judge ("Report") and the Objections. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made.

The Court accepts the findings and recommendation of the Magistrate Judge. Petitioner does not dispute the Report's findings that he is no longer in custody based on the September 1994 state court judgment challenged in his Petition and that he is in custody pursuant to a subsequent federal criminal judgment.¹

1 Petitioner argues that he was not represented by counsel at his change of plea hearing in state court on September 28, 1994. The documents attached to the Petition indicate that he was provided a copy of the state court's September 28, 1994 minute order for the change of plea hearing and that the minute order reflects Petitioner was represented by privately retained counsel, Mr. Sawl, at the change of plea hearing. (Petition at 11, 13.) The online database for the Fresno County Superior Court reflects the same attorney information for Petitioner in Case No. CF94520246-1. (See

IT THEREFORE IS ORDERED that judgment be entered denying the Petition for Writ of Habeas Corpus and dismissing this action for lack of jurisdiction. Dated: April 6, 2020

/s/_________

MICHAEL W. FITZGERALD

UNITED STATES DISTRICT JUDGE

www.fresno.courts.ca.gov/case_info.) A letter from the court reporter dated February 3, 2017 explains that the case file did not contain any prepared transcript and, "due to the age of the case[]," the court reporter notes needed to prepare a transcript no longer exist. (Petition at 11.) Petitioner did not appeal the state court judgment.